In This Issue:

The Blurred Lines of What Constitutes Copyright Infringement of Music: Robin Thicke v. Marvin Gaye’s Estate; Terminology in a Computer Readable Medium Claim —“Physical,” “Tangible,” or “Storage”— Can Pose Problems Under Section 101; The Current State of the Federal Circuit’s Model Order for E-Discovery and Best Practices; and Inter Partes Review and Inter Partes Reexamination: More Than Just a Name Change.

Excerpt from The Blurred Lines of What Constitutes Copyright Infringement of Music: Robin Thicke v. Marvin Gaye’s Estate:

Pop singer Robin Thicke’s megahit “Blurred Lines,” featuring Pharrell and T.I., set records in 2013 by spending sixteen weeks as the number one single on Billboard’s Hot R&B/Hip- Hop Songs chart, topping the Billboard Hot 100 chart for twelve weeks, and selling over 5 million downloads in 22 weeks—the fastest of any song in digital music history. The song’s music video was released as two variant editions—one an unrated topless version that was temporarily removed from YouTube less than one week from release for allegedly violating the site’s terms of service relating to the use of nudity in a sexual context. While critical reactions to the song were mostly positive, the song as well as the music video was criticized for trivializing sexual consent and promoting rape culture; not surprisingly, the song has been banned from use at student events at various schools abroad. Thanks to its massive popularity and associated controversy, “Blurred Lines” has captured much public attention, including the attention of the family of Marvin Gaye. They allegedly accused Thicke of using elements of Marvin Gaye’s song, “Got To Give It Up” in “Blurred Lines” and threatened litigation if a monetary settlement were not paid. Does Thicke’s “Blurred Lines” infringe the copyright owner’s rights to Gaye’s “Got To Give It Up” where there was no actual sampling or literal copying of the music and lyrics? Ironically, because of the blurred lines of what constitutes copyright infringement of music, the answer is unclear. In this article, we discuss the issues raised in the suit and thorny issues surrounding the current law in the area of copyright infringement of music.